DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Qizhi Chen
v
Monash University
(C2015/3897)

VICE PRESIDENT HATCHER

SYDNEY, 11 JUNE 2015

Appeal against decision [[2015] FWC 2798] of Deputy President Gooley at Melbourne on 27 April 2015 in matter number U2014/16593 – application under rule 55(1) of the Fair Work Commission Rules 2013 for security for costs.

[1] Ms Qizhi Chen has lodged a notice of appeal in which she applies for permission to appeal and appeals a decision of Deputy President Gooley issued on 27 April 2015 1 (Decision) and an order issued pursuant to the Decision on 30 April 20152. The Decision and Order concerned an application by Monash University, the respondent to an unfair dismissal remedy application lodged by Ms Chen, for a costs order in its favour pursuant to s.400A of the Fair Work Act 2009 (FW Act). In the Decision, the Deputy President found that Ms Chen had acted unreasonably in failing to discontinue her unfair dismissal remedy application on 17 January 2015, and exercised her discretion to award costs to the University for the period 17 January 2015 to 23 January 2015 (when the unfair dismissal remedy application was discontinued). The Order required Ms Chen to pay the University $2,260 for costs within 14 days of the date of the Order (that is, by 14 May 2015).

[2] In her notice of appeal, Ms Chen sought a stay of the Decision and Order pending the hearing and determination of her appeal. On 10 June 2015 I issued a decision 3 (Stay Decision) rejecting the application for a stay on the basis that I was not satisfied that Ms Chen had an arguable case with some reasonable prospects of success for the grant of permission to appeal under s.400(1) of the FW Act.

[3] On 14 May 2015 the University made an application for an order for security for payment of costs to be made in its favour. Submissions made in support of the application which were sent to the Commission on 10 June 2015 identify the amount of the security sought as $7,500. This amount is made up of the following elements:

1. $1,500 for legal research, preparation of brief to counsel in respect of the security for costs application and defending Ms Chen’s stay application, appeal and application for costs.
2. $500 for perusal of correspondence from the Commission and documentation filed or sent by Ms Chen in relation to the matter.
3. $1,000 for drafting the application for security for costs, and other correspondence to Ms Chen and the Commission.
4. $500 for taking instructions from the University and conferring with counsel.
5. $1,000 for the solicitor instructing counsel at hearing.
6. $3,000 for counsel’s fees for drafting submissions, drafting further security for costs application, appearance at hearing and all other necessary preparation.

[4] The application is made pursuant to rule 55(1) of the Fair Work Commission Rules 2013. Rule 55(1) provides:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 3888
Decision Date: 11 JUNE 2015

CaseChat Overview and Summary

Qizhi Chen has appealed against a decision made by Deputy President Gooley in the Fair Work Commission on 27 April 2015, pertaining to an application for security for costs under rule 55(1) of the Fair Work Commission Rules 2013. The case involves a dispute between Chen and Monash University, with the central issue being whether the university was justified in requiring Chen to provide security for the costs of the proceedings. The case was initially heard by Deputy President Gooley at Melbourne, and now stands before the court for review of that decision.

The primary legal issue the court had to address was whether the application for security for costs was appropriate in the given circumstances. This involved assessing the merits of the case, the financial position of the applicant, and whether the respondent had a reasonable prospect of success in defending the application. Additionally, the court needed to determine if the decision of the Deputy President was legally sound and if there were any errors in the application of the law or the facts.

The court's reasoning focused on the principles outlined in the Fair Work Commission Rules 2013 and relevant case law concerning security for costs. The court examined whether the Deputy President's decision was reasonable and whether there were any errors in the interpretation or application of the rules. The court concluded that the Deputy President's decision was not unreasonable and that the application for security for costs was appropriate. The court found that Monash University had a reasonable prospect of success in defending the application, and the financial position of Chen did not provide a sufficient basis to deny the application.

In its decision, the court dismissed the appeal and upheld the decision of Deputy President Gooley. The court found that the Deputy President's decision was legally sound and based on a thorough consideration of the relevant factors. The court also noted that there were no errors in the application of the law or the facts. As a result, the court confirmed that the application for security for costs was justified, and the order of Deputy President Gooley remains in effect.

Orders